Tomar v Tomar

[2022] NZCA 85

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA711/2021
 [2022] NZCA 85

BETWEEN	VIN TOMAR Applicant
AND	MONIKA TOMAR Respondent

Court:	Brown, Brewer and Cull JJ
Counsel:	Applicant in Person K L Hoult for Respondent
Judgment: (On the papers)	24 March 2022 at 4.00 pm

JUDGMENT OF THE COURT
(Recall)

AThe application for recall is declined.

BThe applicant must pay the respondent costs for an interlocutory application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Brown J)

1. On December 2021 Mr Tomar applied to this Court for leave to appeal against a judgment of the High Court delivered on 10 September 2021[1] (the High Court Judgment) on appeals against two decisions of the Family Court determining aspects of a relationship property dispute between Mr Tomar and his former wife, who is the respondent in this recall application.[2]

   [1]Tomar v Tomar [2021] NZHC 2353 [the High Court judgment]. Leave to appeal was refused by the High Court in Tomar v Tomar [2021] NZHC 3003.

   [2]Tomar v Tomar [2020] NZFC 2960 and Tomar v Tomar [2021] NZFC 4666.

2. In accordance with a minute of Kós P of 21 December 2021 the application for leave to appeal was scheduled to be heard on the papers in the week of 14 February 2022.  On 14 February 2022 Mr Tomar filed an application for an adjournment of the determination of the application. 

3. On 28 February 2022 this Court issued its judgment (the Judgment) declining the application for an adjournment and declining the application for leave to bring a second appeal.[3]

   [3]Tomar v Tomar [2022] NZCA 28 [the Judgment].

4. Mr Tomar has since filed a volley of documents in CA711/2021:

   (a)on 5 March 2022 an interlocutory application recalling or reopening the Judgment;

   (b)on 15 March 2022 an interlocutory application for stay of the Judgment;

   (c)on 17 March 2022 an interlocutory application for leave to appeal and stay of the High Court Judgment;

   (d)on 17 March 2022 an affidavit of Mr Tomar in support of the application in (c);

   (e)on 17 March 2022 an urgent memorandum seeking a stay of the High Court Judgment;

   (f)on 21 March 2022 an urgent memorandum seeking a stay of the High Court Judgment and “recalling or reopening this matter as the public interest appeal”;

   (g)on 23 March 2022 a memorandum “recalling or reopening this matter as the public interest appeal”; and

   (h)copies of several documents filed by Mr Tomar in the Auckland Registry of the High Court.

A memorandum in opposition was filed by the respondent on 22 March 2022.

1. As the Supreme Court recently stated in S (SC39/2017) v R,[4] the general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal.  A decision to recall will only be made in exceptional circumstances.  It will be appropriate to do so where some procedural or substantive error has occurred which would result in a miscarriage of justice.[5]

   [4]S (SC39/2017) v R [2022] NZSC 7.

   [5]At [3].

2. It is not entirely clear from Mr Tomar’s documents the precise basis upon which a recall of the Judgment is sought.  However we infer that his complaint is that his application for leave to bring a second appeal was determined prior to his having the opportunity to pursue a review of the direction of Kós P declining an order for the transcription of the hearing in the High Court.  The President did so because no good reason had been demonstrated in respect of why that was required.

3. As we explained in the reasons for our decision declining Mr Tomar’s application for an adjournment of the hearing of his application for leave, it was unnecessary for him to have transcripts of the High Court hearing for the purposes of consideration of the threshold issue of whether leave for a second appeal should be granted.

4. Mr Tomar has not advanced any grounds justifying a recall of our judgment.  Consequently the application for recall is dismissed.  In these circumstances there is no basis for seeking a stay of the High Court judgment.

5. Mr Tomar must pay the respondent costs for an interlocutory application on a band A basis and usual disbursements.

6. We direct the Registry to refuse to accept any further documents for filing by Mr Tomar in this matter.

Solicitors:
Niemand Peebles Hoult, Hamilton for Respondent